Back After Baby

Return-to-work rights for moms

Author Allan M. Kaufman

In my practice as a lawyer, I have seen a number of recent cases where a woman planning to return to her job after taking maternity leave, is informed by her employer that her job no longer exists and that her employment must therefore be terminated. What many women do not realize is that they have a legal right to be reinstated back into their jobs when they return from maternity leave.

The provision in Ontario’s law is written in mandatory form. That means that your employer must take you back to work when your maternity leave ends and provide you with the same job that you left behind when you went on maternity leave. Also, upon your return to work, your pay must be the greater of either: (a) the salary that you were earning when you first went on maternity leave; or (b) the salary that you would have been earning (at the date you return to work), if you had not taken maternity leave at all.

Some employers may prefer to keep the person who has replaced you while you were away on maternity leave. Even if your replacement has become a “rising star” in the company, the law still gives you absolute first priority to get your job back after maternity leave. In addition, the government has an interest in ensuring that your right to return to work is respected, due to the overarching social requirement of encouraging childbirth and child rearing in Canada.

Even if your replacement has become a “rising star” in the company, the law still gives you absolute first priority to get your job back after maternity leave..

What if your job does not exist when you return from maternity leave due to corporate “downsizing” or restructuring? First, you need to satisfy yourself that your job has actually disappeared. Ask a trusted co-worker who is still on the job to check on what has happened to your position. Once you are satisfied from your inquiries, your employer is then legally bound to provide you with a “comparable job” in the company. What constitutes a comparable job is a matter that you can negotiate with your employer. Companies with a large workforce should be able to furnish you with a position similar to the one you left.

The employer might inform you during your maternity leave that there will be “no job” for you when you plan to return later, and that you will be offered severance pay instead. Ask again for a comparable job to be set up for your return from maternity leave. This gives the employer time to sort out a position for you. In the interim, there may be unexpected retirements, resignations, and other changes in office structure that will facilitate the creation of a new position.

For the employer to lawfully terminate your employment during or after maternity leave, it must be demonstrated that the termination has absolutely nothing to do with your maternity leave. Do not be shy about asserting your legal rights in such a situation. After all, women have fought for many decades to obtain the right to return to their jobs after having children.

Allan M. Kaufman, B.A., L.L.B., B.C.L. (Oxon) is a Toronto lawyer specializing in employment law. He can be contacted for questions about this subject at: a.kaufman@bellnet.ca or call (416) 364-1068.